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ELCDismissedNot stated in the ruling (Notice of motion dated 30/4/2024; Preliminary objection dated 5/4/2024)· [2025] KEELC 322 (KLR)

Goodison Nine Limited v Athman & 4 others; Athman & 3 others (Plaintiffs to the Counterclaim); Gooodison Nine Limited & 5 others (Defendant to the Counterclaim) (Environment & Land Case 20 of 2024) [2025] KEELC 322 (KLR)

Environment and Land Court
4 February 2025
3,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi refused to strike out a land counterclaim, ruling earlier cases never conclusively decided the parties' rights.

What this practically means

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Executive summary

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The applicant, Abdullahi Fara Haji, the 2nd defendant in a counterclaim, moved the Environment and Land Court at Malindi by notice of motion dated 30/4/2024 and a preliminary objection dated 5/4/2024 seeking to strike out the counterclaim as res judicata Malindi ELC Case No 62 of 2012, its appeal MSA CA No 128 of 2018, and Malindi ELC Petition No 29 of 2022, and to strike out the 4th and 5th defendants' defence for violating judicial estoppel. The counterclaimants, through Ali Haidar Ali holding a power of attorney, responded that the petition court expressly declined to find for either side, that they were never parties to the earlier suit and appeal, and that the current Land Registrar's evidence sheds new light. Mwangi Njoroge J framed one main issue: whether the counterclaim is res judicata the prior matters. Applying Section 7 of the Civil Procedure Act and the requirement of a conclusive determination on the merits, the court held that Petition No 29 of 2022 dismissed both the petition and cross-petition without determining the parties' rights, expressly inviting a future 'rematch', so res judicata was not triggered. The court further found the counterclaimants were not parties to the 2012 petition and appeal, in which parcel Lamu/Manda Island/259 was mentioned only in passing and its title never nullified. On judicial estoppel, the court held that contending a cancellation was illegal is not an admission the title was invalid. The unsigned supporting affidavit was treated as a technicality that could not save an application failing on substance. Both the motion and preliminary objection were dismissed with costs to all other parties, and directions were issued for filing of submissions on the plaintiff's application dated 15/2/2024, with a last mention fixed for 13/2/2025.

Key legal issues

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01

Whether the counterclaim is res judicata Malindi ELC Petition No 29 Of 2022

Holding

It is not, because the petition and cross-petition were dismissed without a conclusive determination of the parties' rights on the merits

Reasoning

The court in Petition No 29 of 2022 declined to find for either the petitioner or the cross-petitioners, stating none provided the real evidence required for a comprehensive and conclusive judgment on the constitutional issues, and even suggested a rematch may be necessary. A matter not heard and determined on the merits does not trigger res judicata.

p. 5
02

Whether the counterclaim is res judicata Malindi ELC Case No 62 Of 2012 and the appeal in MSA CA No 128 Of 2018

Holding

It is not, because the counterclaimants were not parties to those proceedings and Lamu/Manda Island/259 was only mentioned in passing and its title never nullified

Reasoning

The real subject matter of the 2012 petition and the appeal were parcels Lamu/Manda Island/88 and 176-185, whose titles alone were nullified. Plot 259 was mentioned only once in the judgment and the respondents there never identified who claimed interest in it. The present counterclaimants were not parties to either matter, so neither privity nor identity of parties exists.

p. 7
03

Whether the defence and counterclaim are barred by judicial estoppel

Holding

No; asserting the illegality of a cancellation is not an admission that the title was invalid

Reasoning

The counterclaimants challenged the cancellation of their title because they believed it was valid and the cancellation illegal. Since that petition did not determine whether the cancellation was illegal, their belief in the validity of their title persists. Applying estoppel here would unjustly bar parties from pursuing their rights.

p. 8
04

Whether the unsigned supporting affidavit vitiates the application

Holding

It is a technicality that would not change the outcome since the application fails on substantive grounds

Reasoning

Although the affidavit supporting the application was not signed at all, the court deliberately declined to spend time on technicalities, dealt with the substantive issues first, and found the application would still have failed even if the affidavit had been executed.

p. 8

Legal principles established

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  • Res judicata applies only where the former suit was heard and finally determined on the merits; a dismissal without a conclusive determination on the merits does not trigger the doctrine
  • The ingredients of res judicata are identical issues, same parties or parties claiming under them, competent jurisdiction, and conclusive determination
  • A party's challenge to the cancellation of its title does not estop it from asserting the validity of that title in later proceedings
  • An unsigned affidavit is a technical defect the court may overlook where the application would in any event fail on substance

Court orders

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  1. 1.The preliminary objection dated 5/4/2024 and the notice of motion dated 30/4/2024 are dismissed with costs to all the other parties in the case
  2. 2.All parties to upload their submissions and replies in relation to the plaintiff's application dated 15/2/2024 on the CTS portal, serve them, and upload affidavits of service on the CTS portal
  3. 3.The matter to be given a last mention before ruling on 13/2/2025 for issuance of a ruling date
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (interlocutory application within a pending suit); Section 7 of the Civil Procedure Act invoked on res judicata

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Goodison Nine Limited v Athman & 4 others; Athman & 3 others (Plaintiffs to the Counterclaim); Gooodison Nine Limited & 5 others (Defendant to the Counterclaim) (Environment & Land Case 20 of 2024) [2025] KEELC 322 (KLR)", Case Analysis (2025). Not stated in the ruling (Notice of motion dated 30/4/2024; Preliminary objection dated 5/4/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/322/eng@2025-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.